In re a Petition by Petitioner (Same Sex Marriage)
| Jurisdiction | Northern Ireland |
| Neutral Citation | Summary of judgment - In re a Petition by Petitioner (Same Sex Marriage) |
| Court | Court of Judicature (NI) |
| Date | 15 April 2020 |
Judicial Communications Office
1
15 April 2020
COURT DELIVERS SECOND SAME SEX MARRIAGE
JUDGMENT
Summary of Judgment
The Court of Appeal1 today delivered judgment in an appeal brought by two men who were
married in England but upon their return to Northern Ireland had to be treated as civil partners. The
Court ruled they had been discriminated against but said the recent changes to legislation meant
there was no purpose to be served by it making an order declaring the legislation at the time to be
incompatible with the European Convention on Human Rights (“ECHR”).
Statutory Background
Marriage is a matter in respect of which the Northern Ireland Assembly has competence. The
Marriage (Northern Ireland) Order 2003 (“the 2003 Order”), however, was made by the Westminster
Parliament during a period of suspension of the Assembly. Article 6(6)(e) of the 2003 Order
provides there is a legal impediment to a marriage if both parties are of the same sex.
In December 2014, after returning to Northern Ireland after his marriage in London, the appellant
issued a petition pursuant to Article 31 of the Matrimonial and Family Proceedings (NI) Order 1989
(“the 1989 Order”) seeking a declaration that his marriage is a valid and subsisting marriage under
the law of Northern Ireland. Article 34 of the 1989 Order provides that if the truth of the preposition
to be declared is proved the court must make that declaration and any such declaration is binding on
the Crown and all other persons. Schedule 2, Part 1, paragraph 2(1) of the Marriage (Same-Sex
Couples) Act 2013 (“the 2013 Act”), however, provides that the appellant’s marriage under the law
of England and Wales is to be treated in Northern Ireland as a civil partnership. The appellant
sought a declaration that the relevant provision of the 2013 Act is incompatible with Articles 8, 9 or
12 of the ECHR either alone or read in conjunction with Article 14 ECHR.
Prior to the restoration of devolved government in Northern Ireland in January 2020 the
Westminster Parliament passed the Northern Ireland (Executive Formation etc) Act 2019. Section 8
required the Secretary of State to make regulations by 13 January 2020 providing that two persons
who are of the same sex are eligible to marry in Northern Ireland, and two persons who are not of
the same sex are eligible to form a civil partnership in Northern Ireland. Section 8(5) enabled the
Secretary of State to make provision for the right to convert a marriage into a civil partnership and a
civil partnership into a marriage. The Marriage (Same-Sex Couples) and the Civil Partnership
(Opposite-sex Couples) were passed on foot of the legislation. The appellant’s marriage has
therefore now been recognised in accordance with that provision.
The First Instance Decision
1 The panel was the Lord Chief Justice, Lord Justice Stephens and Sir Donnell Deeny. The Lord Chief Justice
delivered the judgment of the court.
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